Public Knowledge Challenges Copyright Enforcement LegislationDecember 13, 2007
Public Knowledge President Gigi B. Sohn said today in Congressional testimony that new copyright enforcement legislation (HR 4279) could harm consumers and innovators while not creating an effective deterrent to copyright violations.
In testimony to the House Subcommittee on Courts, the Internet and Intellectual Property, Sohn said she agreed that while “enforcing IP laws is essential to encouraging creativity, certain parts of the bill could undermine this goal.”
Overall, Sohn said she wanted to challenge the assumption on which efforts to improve enforcement of intellectual property laws are built – that “ever-higher penalties will somehow create a deterrent effect currently absent in today's laws.” She told the Subcommittee that “of all the changes that need to be made to IP law, increasing the severity of the penalties is one of the least necessary, and quite possibly, the most counterproductive.”
The major change in this bill would “greatly escalate statutory damages beyond their currently bloated state,” Sohn said in her written testimony, explaining that current law provides for penalties of up to $30,000 for each non-willful violation and up to $150,000 for each willful violation. Those levels, she said, “are already stretching the bounds of reason.”
Sohn added: “We should be clear that several problems confront IP law, and specifically copyright law, and these several problems have distinct causes and distinct solutions. It doesn't help to combat piracy if in doing so both commercial pirates and ordinary home consumers are subjected to the same harsh penalties. When the mere act of forwarding your email or updating your blog can infringe copyright, it makes more sense to have the law comport with reality before increasing the sanctions that accompany infringement.”
As an alternative, Sohn proposed a six-point approach: (1) Fair use needs to be preserved in the digital age. (2) The Sony standard from 1984 to protect devices from secondary liability if they are capable of substantial non-infringing uses. (3) There should be protections against copyright abuse, when copyright holders recklessly send takedown notices. (4) Licensing, particularly music licensing, should be made more rational in setting rates. (5) The problem of orphan works should be addressed. (6) Technical and legal restrictions on the use of copyrighted works must be clearly and plainly disclosed to consumers.
The written testimony is available here